EPA on Monday proposed allowing data centers, power plants and other industrial facilities to begin certain construction work before obtaining required federal air permits.
The proposal is the latest development in the Trump administration’s effort to juice new manufacturing and other industries, especially artificial intelligence.
EPA Administrator Lee Zeldin said the change will cut through red tape to speed up projects. “Today’s proposal works to provide solutions to issues that have held up critical American infrastructure and advance the next great technological forefront,” he said in a statement.
New facilities that qualify as major sources of pollution, or major sources undergoing significant modifications, must go through a permitting process known as New Source Review to ensure their emissions won’t worsen air quality beyond current levels. Industry leaders have long argued NSR permitting is time-consuming and costly.
Under Zeldin’s new proposal, companies could start constructing “non-emitting” project components before obtaining NSR permits, including utility infrastructure, concrete pads and certain buildings.
“These changes aim to foster economic growth by providing greater flexibility for owners and operators building or modifying stationary sources of air pollution to engage in certain construction activities prior to obtaining an NSR permit, while still ensuring the same degree of public health and welfare protection provided through the NSR permitting requirements,” EPA said in its proposal.
“Actual” construction on components of a project that could emit pollutants would still be prohibited until NSR permits were issued.
Such pre-NSR permit construction would still be subject to other federal, state and local laws, EPA noted.
Under previous policy, EPA was wary of what it called “equity in the ground,” in which companies commencing construction before obtaining a permit would have leverage to pressure regulators to issue a permit where it might have denied one, or to issue a less stringent permit.
But EPA said its rulemaking is “not intended to, and should not be construed as, establishing any equity or reliance arguments” for muscling through a permit.
“Permit applicants that choose to undertake onsite construction activities in advance of permit issuance do so at their own economic risk that a permit may be denied or issued with unanticipated conditions on operations, potentially resulting in a lost investment or increased construction costs,” EPA said.
The agency initially floated a similar change in a draft 2020 guidance document that was never finalized. Last fall, EPA issued guidance in the form of a project-specific letter to Arizona officials that authorized certain pre-permit construction for a semiconductor factory. This new rulemaking follows that up to apply more easily nationwide.
The proposal (Reg. 2060-AW84) will be open for 45 days of comment once published in the Federal Register.
EPA speeds Title V reviews
EPA on Monday separately issued guidance to speed another type of air permit approval.
“For too long the Clean Air Act has been used as an excuse to slow walk projects beneficial to our communities,” EPA air chief Aaron Szabo said in a statement. “The Trump EPA is changing this through the plain reading of the law. We can protect human health and the environment and have an efficient permitting process.”
Once constructed, major sources must obtain “Title V” permits that define their specific air pollution control requirements in five-year increments. Permitting authorities must release draft Title V permits publicly and take comment for at least 30 days. EPA has 45 days to review the draft and object if it has any issues.
New guidance issued by Szabo argues that state permitters can streamline their efforts by clarifying that EPA’s review can happen concurrently with the public comment period, shaving time off the review process.
“If the permitting authority does not anticipate receiving significant public comment, the EPA strongly encourages the permitting authority to concurrently submit the proposed permit to the Agency,” Szabo wrote.
Szabo also noted the law gives EPA up to 45 days to review drafts, but that regional offices aren’t required to use that full time.
Most Title V permits are uncontroversial, but in the event of “significant” public comment, permitters must respond and update the permit. In that case, EPA says it could limit its follow-up review only to the relevant portions and get through even more quickly.
The memo would not restrict the time environmental groups or the general public would have to petition EPA to object to a state-issued permit. The Clean Air Act allows for such petitions up to 60 days after EPA’s 45-day review period ends, even if the agency ends its review earlier than the 45-day deadline.
EPA last month issued another guidance document speeding up Title V permit renewals by making it faster and easier to renew if no changes are being made from the prior permit.
